HUNT v. BITTMAN

This is an action for legal malpractice brought by E. Howard Hunt, Jr., a convicted Watergate burglar and conspirator,
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against his former counsel, William O. Bittman and the general partners of Hogan & Hartson. Defendants move the Court for a dismissal on the ground that plaintiff's action is barred by the statute of limitations. Defendants Mintz Et al., the general partners of Hogan & Hartson, also move for a dismissal on the ground that plaintiff suffered no legal injury in connection with defendants' representation of him. Plaintiff opposes defendants' motions, and also moves for partial summary judgment on the issue of liability. Defendants oppose plaintiff's motion. For the reasons set forth below, the Court treats defendants' motions to dismiss as motions for summary judgment,
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enters summary judgment for defendants, and does not reach plaintiff's motion for partial summary judgment.

BACKGROUND

On June 17, 1972, District of Columbia police arrested four men from Miami,
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who were found inside the headquarters of the Democratic Party's National Committee in the Watergate office complex. "Arrested with them was James McCord,
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a former CIA agent who was then employed as a security officer by the Committee for Re-Election of the President (Richard M. Nixon) (CRP); the next few days brought the arrest of their immediate supervisors in the bizarre enterprise: (plaintiff) E. Howard Hunt,
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a former CIA agent who was then, or had recently been, employed as a "consultant' to the White House, with an office in that building, and G. Gordon Liddy,
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a former White House employee who was then employed as General Counsel to the Finance Committee for the Re-Election of the President (FRCP)."
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On January 10, 1973, Bittman announced in open Court that Hunt wished to plead guilty to three of the six counts of the indictment, and represented that the Government agreed to allow Hunt to plead guilty to these three counts and to dismiss the remaining three counts.
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The prosecutor indicated that Bittman's representation was accurate, and that such a disposition was acceptable to the Government.
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Judge Sirica took the matter under advisement.
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On the following day, January 11, 1973, Judge Sirica refused to accept Hunt's plea to only three counts.
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In view of this ruling, Hunt agreed to plead guilty to all six counts.
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Judge Sirica accepted this plea after determining that Hunt understood the charges against him, had committed the crimes with which he was charged, was entering the plea voluntarily, and had discussed the plea with and was entirely satisfied with the services of his attorney, Bittman.
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On March 23, 1973, Hunt appeared for sentencing before Judge Sirica. On that date, Judge Sirica provisionally sentenced Hunt to prison, and advised Hunt to cooperate fully with the authorities;
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Hunt was incarcerated immediately thereafter. In July 1973 the Watergate Special Prosecutor indicated that there was a possibility of a conflict of interest between Hunt and Bittman. As a result, on August 16, 1973, Bittman and the firm of Hogan & Hartson withdrew as Hunt's counsel. Succeeding defendants as Hunt's counsel were Sidney S. Sachs and the law firm of Sachs, Greenebaum & Tayler.

In September 1973 Hunt, represented by new counsel, filed a motion to withdraw his guilty plea and to dismiss the indictment. In November 1973 Judge Sirica denied this motion. Two days later, on November 9, 1973, Judge Sirica imposed a final sentence on Hunt of from thirty months to eight years in prison and a fine of $ 10,000.

Hunt appealed the denial of his motion to withdraw the guilty plea and to dismiss the indictment. On January 2, 1974, by Order of the Court of Appeals, Hunt was released from prison pending resolution of his appeal. In February 1975 the Court of Appeals, sitting en banc, unanimously affirmed Judge Sirica's decision.
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Two months later, on April 25, 1975, Hunt returned to prison, where he remained until he was released on parole on February 23, 1977.

Plaintiff Hunt filed this action on September 30, 1977, seeking $ 5 million in compensatory damages and $ 5 million in punitive damages. His amended complaint sets forth four counts. The first count alleges that defendants were negligent in their representation of Hunt. This count further alleges that defendants' acts and omissions directly and proximately caused Hunt's imprisonment, loss of reputation, loss of earnings, and distress.

The factual allegations set forth in count I and incorporated in the remaining three counts can be summarized as follows: (1) that defendants provided inadequate representation to Hunt in the Watergate case in several respects;
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(2) that Bittman engaged in a conspiracy with White House and CRP officials and other lawyers to protect individuals in the White House at the expense of the interests of Hunt and other Watergate defendants; and (3) that Bittman's loyalties became divided between himself and Hunt after Bittman became the target of a criminal investigation as a result of his transmitting payments to Hunt.

Id. at 995-96. The Weisberg court also made two other points about the application of the "fraudulent concealment" doctrine to legal malpractice claims. First, it noted that "a fraudulent concealment tolls a statute of limitations only for so long as the concealment endures." Id. at 996. Second, the court emphasized that " "one well established defense to a claim of fraudulent concealment is that the plaintiff knew, or by the exercise of due diligence could have known, that he may have had a cause of action.' " Id.

Mindful of principles articulated by the Weisberg court, the Court turns to consider whether the "fraudulent concealment" doctrine saves Hunt's legal malpractice claim from the statute of limitations bar. In resolving this question, the Court will first address the three basic factual allegations set forth in plaintiff's amended complaint, and then consider his argument that six particular matters were fraudulently concealed from him.

As indicated above, the amended complaint contains three basic allegations. The first of these allegations is that defendants provided inadequate representation to plaintiff in the Watergate case in several respects. Hunt makes the following specific allegations of inadequate representation: (1) that defendants failed to counsel Hunt to cooperate with the authorities prior to the imposition of his final sentence; (2) that defendants failed to raise certain defenses, such as "executive authorization," on Hunt's behalf; (3) that Bittman failed to represent Hunt adequately in plea bargaining with the prosecutor; and (4) that Bittman counseled Hunt to perjure himself.

With regard to the second allegation of inadequate representation, the record indicates that Hunt was fully aware of the possible defense of "executive authorization" before October 1, 1974. In his deposition, Hunt frankly conceded that defendants, who represented him until August 1973, discussed this defense with him,
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and that he felt that the case should not be defended on that theory.
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Moreover, a contemporaneous memorandum, written by Bittman and dated July 5, 1973, confirms that Hunt was informed of the defense of "executive authorization" and that he did not want to defend the case on that theory.
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Finally, Hunt must have been aware of this defense by September 1973, when his new counsel, Mr. Sachs, raised it in Hunt's motion to withdraw the guilty plea and to dismiss the indictment.

With regard to the third allegation, the record indicates that Hunt was fully aware of the adequacy of Bittman's plea bargaining with the prosecutor before October 1, 1974. In his deposition Hunt admitted that his allegation of inadequate plea bargaining was "speculation," and this speculation was not based on any facts at all and certainly not based on any facts learned by him after 1973.
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Moreover, the only basis for this speculation was that other Watergate defendants had received more favorable treatment from the Government than Hunt did facts that Hunt admitted knowing in 1972 and 1973 when those defendants received their more favorable treatment.
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Furthermore, the plea bargain between Bittman and the special prosecutor was rejected by Judge Sirica, who insisted on a plea to all counts.
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Finally, with regard to the fourth allegation, it is clear that Hunt was fully aware of Bittman's alleged advice to commit perjury before October 1, 1974. If Bittman, who represented Hunt until August 1973, did counsel Hunt to perjure himself, then Hunt must have known of this advice at the time it was allegedly given.

The second of the three basic allegations contained in the amended complaint is that Bittman engaged in a conspiracy with White House and CRP officials and other lawyers to protect individuals in the White House at the expense of the interests of Hunt and the other Watergate defendants. With regard to this allegation, the record indicates that Hunt knew of Bittman's alleged participation in this conspiracy before October 1, 1974.

This same allegation of conspiracy by the original Watergate defense counsel, including Bittman, was made publicly by James W. McCord, Jr., Hunt's codefendant in the Watergate case, in an unsuccessful effort to have his conviction reversed.
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On June 8, 1973, McCord filed a motion seeking an acquittal or a new trial in which he argued that his trial had been prejudiced by the existence of conspiracy to obstruct justice.
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In his affidavits supporting this motion filed on August 9 and October 10, 1973, McCord alleged that his original Watergate lawyers and defendant Bittman participated in this conspiracy, which attempted to keep McCord and the other Watergate defendants silent about the involvement of White House and CRP officials in the Watergate episode.
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Moreover, in his brief filed with the District of Columbia Circuit on February 14, 1974, McCord again publicly asserted and further expanded upon his conspiracy allegations.
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Finally, on March 15, 1974, Hunt sent to his then counsel, C. Dickerson Williams, a copy of an article about McCord appearing in the Washington Post on the same date.
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This article described McCord's filing of a motion to vacate his conviction in which he alleged that Bittman had participated with White House and CRP officials in the Watergate cover-up conspiracy.
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The final basic allegation contained in the amended complaint is that Bittman's loyalties became divided between himself and Hunt after Bittman became the target of a criminal investigation as a result of his transmitting payments to Hunt. With regard to this allegation, the record indicates that Hunt knew before October 1, 1974 that Bittman was under scrutiny for his possible involvement in the transmission of payments to Hunt.

Hunt had knowledge of this conflict-of-interest allegation from many sources. A Jack Anderson column,
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which appeared in the Washington Post on April 17, 1973 and of which Hunt was aware at the time it appeared,
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described Bittman's alleged role in transmitting payments to the Watergate defendants. Two days after the column appeared, on April 17, 1973, Hunt was questioned before the grand jury about Bittman's alleged involvement in transmitting these payments.
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Moreover, Hunt knew when defendants withdrew as his counsel in August 1973 that the reason for their withdrawal was the Watergate Special Prosecutor's assertion of a possible conflict of interest between Hunt and Bittman arising out of Bittman's alleged role in the transmission of payments.
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Finally, Hunt knew on March 1, 1974 that Bittman was named an unindicted coconspirator in the Watergate cover-up indictment and that he had been a target of a criminal investigation as a result of his alleged role in the transmission of payments.
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Plaintiff's third and fourth allegations are similarly without basis. With regard to the third allegation, the record indicates that Hunt was aware by the fall of 1973 that Miller was representing defendant Bittman.
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With regard to the fourth allegation, the record indicates that Hunt was aware by July 1974 of defendant Bittman's withdrawal from Hogan & Hartson.
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Plaintiff's fifth and sixth allegations are also without basis. In plaintiff's fifth point, he alleges fraudulent concealment by counsel in respect to certain testimony given by them before the grand jury in 1975. It is uncontroverted that at the time this testimony was given, these defendants no longer represented Hunt. Accordingly, an essential basis for the contention of fraudulent concealment is lacking. Finally, with regard to the sixth allegation, the record indicates that Hunt, as the author of the November 12, 1972 memorandum, was aware of the memorandum and its contents.
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Under these circumstances, the Court rejects as without merit Hunt's argument relating to defendants' fraudulent concealment of these six matters. The Court therefore holds that the "fraudulent concealment" doctrine does not save Hunt's cause of action from the statute of limitations bar, and that Hunt had knowledge of the existence of what he characterizes as his cause of action against defendants before October 1, 1974.

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